ARIZONA’S SB1070: JUDGE BOLTON DISPENSES POLITICAL IDEAS, BUT JUSTICE IS AN ORPHAN

And so is rational thought an orphan, after reading through Justice Susan Bolton’s Order earlier today. Thankfully, I soon found National Review Online with several excellent posts there about this decision, and later a few enlightening comments (scroll to very bottom of this post) associated with the Hot Air “breaking news” article about Arizona’s SB 1070 and the decision to issue a temporary injunction on portions of that legislation (pending trial, some portions of the law are withheld from the law while the law goes into effect tomorrow).

Note that, in addition to Arizona, other states in this nation already have laws in effect that are similar to SB 1070: Rhode Island, specifically and California for another. Additionally, other states are currently working on their own state laws to address illegal alien populations and related liabilities. The federal government has brought suit against Arizona and only Arizona, however, and claims that Arizona’s law would pose some undue “burden” of disasterous proportions on the federal government, yet, there’s Rhode Island and they haven’t been sued. Apparently, only Arizona defending itself against illegal immigration and all the economic liability that goes along with that creates this particular “burden” but other states don’t — or they do present the same “burden” but are simply not being challenged on it as Arizona is; why this “burden” problem might be unique to Arizona remains undefined, while other, related immigration laws created in states that violate or contradict federal law also remain unchallenged by the federal (such as sanctuary laws that exist in cities and counties in various states, and states that cater to those laws).

Today’s ORDER by Ms. Bolton is fraught with incredible allegations and other fancy. The federal laws remain that deem illegal immigration a crime, document fraud to be a crime, stealing to be a crime, etc., so these laws remain in effect despite what Bolton has set forth, and, Arizona’s SB 1070 continues in effect tomorrow that will include enforcing against anyone transporting or hiring an illegal alien in the state. So I don’t know why there were cheers and celebrations today in Arizona, California and elsewhere following Ms. Bolton’s decision — there isn’t a great deal to cheer about except the enjoyment of being able to violate U.S. laws and not be held accountable by those who do and by some who encourage them to keep doing so: Eric Holder, Barack Obama, for starters. The decision today by Bolton was a political one, it was not credible justice, not justice — nor lucid — at all.

Holder’s Justice Dept. contends that if Arizona was to enforce federal immigration law, that it would pose undue burden on the federal government because the federal government (1.) can’t handle the reports and (2.) doesn’t want a “patchwork quilt” of laws created in and by the nation’s states.

No mention of the fact that there are already a “patchwork quilt” of immigration laws in this nation (which the federal has not penalized nor even held to task): Rhode Island, California, several other states working on them at this very time. And, not enforcing the law is the fallback position of the current federal government while they go about, instead, selectively doing so (for “criminals” while turning a blind eye to the rest, who are also in violation of our laws but they’re getting a head-turned version of amnesty by no one enforcing the laws against them that they are violating).

Please read the following articles for so much more, in detail:

Meanwhile, Rush Limbaugh and many of the rest of us Americans now wonder: if federal law can’t be enforced by states (note, many federal laws are already enforced by states, coast to coast), then, is it now “illegal” for states to enforce any and/or all federal laws? This is a serious question because it points out the essence of just how nutty the ruling by Bolton is, that one from today that illegal aliens, Eric Holder and Barack Obama are cheering.

As to that lie of “preemption” that Ms. Bolton applied — there is no preemption. She appears to have “ruled” on a “belief” that is not based upon reality and by doing so, defines her decision as political behavior and herself as a judge in poor condition.

RUSH: …The judge here, the Clinton appointee, did adopt the ACLU argument, which is the argument the government made as well, that Arizona’s creating its own enforcement mechanism that runs contrary to the federal government, and she says that you can’t have a law that’s legal that’s preemptive. So the Arizona law, she says, would be preemptive. Now, that’s a flat-out deception, and everybody knows it’s a deception. More than that, you have a very high bar to stay a law, to stop a law enacted legally by the elected representatives of the people of the state. Any law, you have to have a very high bar before conducting a trial, and that bar was not met. But she ruled as she did anyway which means that this is an activist decision, this is not a judicial decision, and you all know it, you instinctively know this.

The judge, in order to rule as she did, had to ignore what Arizona was actually doing and instead she had to accept the spin of the government and the ACLU and the fake media, which is that there’s profiling going on. That is a manufactured lie. Nothing, nothing in the media is real. There is nothing real. Media is not real. Liberalism is not real. It’s all spin; it’s all fake; it’s all lies. There is no racial profiling, and yet this judge has ruled on the spin. This judge has not ruled on the law. There is no racial profiling. We didn’t make a bill deal of it because we figure a judge is gonna look at the law, not the stupid media in making her decision. But she listened to the media. She had to ignore the high bar that was not met in staying the law. (— Continued).

This is a typical example of a judge stating the correct legal standard, but then ignoring it and applying the test in a fashion completely divorced from the facts of the case in order to reach a predetermined decision.

First, the court states correctly that the sort of constitutional challenge brought here — a facial challenge — is the most difficult challenge to mount successfully. It requires that the plaintiff (here the federal government) must demonstrate that the law can never be applied in a constitutional fashion. The test cannot be met with hypothetical arguments — yet that is exactly what the court relies on in its ruling: the assertion that the AZ law will impose an impermissible burden on law enforcement, which is to determine the legal status of a person detained pursuant to the AZ law on the reasonable suspicion that the person is in the country illegally. The court does not provide any empirical basis to support its conclusion. It’s pure supposition. (– Continued).

On a quick read, the federal court’s issuance of a temporary injunction against enforcement of the major provisions of the Arizona immigration law appears specious.

In essence, Judge Susan Bolton bought the Justice Department’s preemption argument — i.e., the claim that the federal government has broad and exclusive authority to regulate immigration, and therefore that any state measure that is inconsistent with federal law is invalid. The Arizona law is completely consistent with federal law. The judge, however, twisted to concept of federal law into federal enforcement practices (or, as it happens, lack thereof). In effect, the court is saying that if the feds refuse to enforce the law the states can’t do it either because doing so would transgress the federal policy of non-enforcement … which is nuts.

The judge also employs a cute bit of sleight-of-hand. She repeatedly invokes a 1941 case, Hines v. Davidowitz, in which the Supreme Court struck down a state alien-registration statute. In Hines, the high court reasoned that the federal government had traditionally followed a policy of not treating aliens as “a thing apart,” and that Congress had therefore “manifested a purpose … to protect the liberties of law-abiding aliens through one uniform national system” that would not unduly subject them to “inquisitorial practices and police surveillance.” But the Arizona law is not directed at law-abiding aliens in order to identify them as foreigners and subject them, on that basis, to police attention. It is directed at arrested aliens who are in custody because they have violated the law. And it is not requiring them to register with the state; it is requiring proof that they have properly registered with the federal government — something a sensible federal government would want to encourage. (— Continued).

After a quick read of Judge Bolton’s decision in the Arizona illegal immigration case and based on a bit of experience in federal preemption issues in a previous life, I concur with Andy’s take on the matter.

Many in the media are reporting the decision as a major win for the Obama administration. That’s a sloppy description. It’s a temporary judicial win and a likely political problem — at least in the short-to-intermediate term — for the administration.

Today’s decision increases the probability that supporters of the Arizona law will see the federal government’s refusal to enforce the border as an issue in the fall elections. Those supporters, who outnumber opponents of the measure by more than two to one [Note, emphasis added], will be motivated to vote this November — and again and again until the case is finally adjudicated on the merits. That might not be for some time, possibly extending to the 2012 elections…

Today’s biggest losers are Arizona Democrats, followed by any other candidates nationwide who will have to defend their opposition to the law and support for today’s decision.

In enjoining Arizona’s landmark immigration law, U.S. District Judge Susan Bolton maintains the Obama administration’s carefully cultivated fiction: that what concerns the White House regarding S.B. 1070 is its effect on legal, rather than illegal, aliens. Almost nowhere in the government’s briefs or the judge’s ruling is the arrest and detention of illegal aliens addressed. This fiction is transparent, however. The real threat posed by S.B. 1070 was that it would disrupt the de facto amnesty that the executive branch has accorded to the vast majority of illegal aliens. It would start to implement congressional mandates and the public will that the immigration laws be enforced. For that reason, it had to be stopped.

So determined was Judge Bolton to follow the Obama administration’s political strategy regarding the law’s putative impact on legal immigrants that she exploited a drafting error in the law that Arizona had already acknowledged and repudiated. S.B. 1070 authorizes local law-enforcement officers to check the immigration status of individuals they have lawfully stopped, if they have reasonable suspicion that the individual is in the country illegally, and if the inquiry into immigration status is practicable. S.B. 1070 also required that “any person who is arrested shall have the person’s immigration status determined before the person is released.” Arizona stated in its brief and testified in court that the legislative intent behind that sentence regarding arrestees was that only people for whom there is already reasonable suspicion that they are in the country illegally would have their immigration status checked after arrest. The section does not apply to every arrestee.

Judge Bolton rejected that testimony, however, in order to buttress the White House claim that large numbers of legal aliens would be subject to immigration inquiries if S.B. 1070 went into effect. As the Justice Department portrayed it, and as Judge Bolton affirmed, massive categories of legal aliens by definition do not have proof of their legal status with them. If those legal aliens are now to be queried about their immigration status following every arrest in Arizona, they will be subject to undue harassment, the federal government and the judge concluded.

The only lawful aliens to whom the judge could point who would not necessarily have proof of status “readily available” to them, however (neither the federal government nor the judge asserted that proof of status was “unavailable” to such individuals), were visitors from visa-waiver countries, asylum applicants who have not yet received a green card, victims of certain enumerated crimes such as trafficking who are assisting law enforcement, and women who have petitioned for relief under the Violence Against Women Act. But presumably the lawful status of such aliens would be known to the federal government. If an Arizona officer inquired into those aliens’ immigration status, ICE would tell the officer that the person is authorized to be in the country, ending the investigation.

Furthermore, the number of such individuals who would also be in a position to raise an officer’s reasonable suspicion that they were in the country illegally is extremely small. In a petition for injunctive relief, a judge must balance the equities in favor of both parties. The interest of Arizona, where 500,000 illegal aliens reside, in restoring the rule of law should be weighed against the interest of those small numbers of legal aliens or aliens whose status is in abeyance and who might be questioned regarding their immigration status because they have raised a reasonable suspicion that they are in the country illegally. (— Continued).

NOTE: it is (and continues to be) federal law that anyone in the U.S. who is “a legal alien” — someone here legally but not a citizen (visa, green card) — carry their visa or green card with them ‘at all times’. Today’s ORDER in Arizona does not change that (in Arizona or anywhere else in the U.S.); whatever “harassment” someone traveling in Arizona would experience by being asked there to provide either document that isn’t considered “harassment” by/of them in other states when asked to provide visa or green card (remember, that’s the law nationwide), remains a mystery — something about being in Arizona versus being in the rest of the nation suddenly prevents people from “having” or being able to “show” identification? This is a premise at which it is difficult to not laugh.

While I realize that the context in Arizona under SB 1070 would be, if in effect, that the state would make the request — versus the federal in other states — that again is implausible an argument by the federal because state employees in other states are already involved in both asking for and “checking” visas, green cards, passports among them, as to persons in this nation legally but not as citizens (“legal aliens”). This entire issue of the possibility of “hurt feelings” (“people might be harassed“) because it’s Arizona who might inquire is beyond the pale (and pitiful to hear it echoed) by the federal government and Judge Bolton.

The impression from the events up to and through today, to this citizen and voter, is that Eric Holder and Barack Obama are efforting to protect illegal activity and to avoid enforcing our laws — and punishing those states who are trying to defend and protect their respective citizens — when it benefits a non-disclosed political motive, or, perhaps, additionally, assisting foreign interests from whence they are benefiting while our nation is damaged.

Not to get too far into the weeds, but to amplify a point Heather made (above) about today’s Arizona ruling:

The only lawful aliens to whom the judge could point who would not necessarily have proof of status “readily available” to them, however (neither the federal government nor the judge asserted that proof of status was “unavailable” to such individuals), were visitors from visa-waiver countries [my emphasis — MK], asylum applicants who have not yet received a green card, victims of certain enumerated crimes such as trafficking who are assisting law enforcement, and women who have petitioned for relief under the Violence Against Women Act. But presumably the lawful status of such aliens would be known to the federal government. If an Arizona officer inquired into those aliens’ immigration status, ICE would tell the officer that the person is authorized to be in the country, ending the investigation.

It’s actually better than that. Visitors from visa-waiver countries have their duration of stay stamped in their passports, so they do so have “readily available” to them proof of legal status, and the federal government obviously knows this. A colleague was shocked that DHS and DOJ would tell the court such a “complete bald faced lie.” Considering they also lied about the likely increased burden on the Law Enforcement Support Center, you’ve got to figure that the Obama people are desperate. Though if these lies are exposed in the subsequent litigation it may not make much difference anyway, since the Clinton-appointee’s ruling “verges on bad faith,” as Heather put it.

REFERENCE:

ORDER
At issue is the Motion for Preliminary Injunction filed by Plaintiff the United States
(“Pl.’s Mot.”) (Doc. 27);

…an appeal is being filed tomorrow by the State of Arizona and there is dedication and purpose by the state (and the high majority of American citizens and voters for the State and SB 1070) to pursue the contest all the way to the Supreme Court, as well there should be.

FOOTNOTE:

The ONLY people I saw photographed from earlier today holding signs bearing “nazi” signage and symbols and other militant signage relative to the “Anarchists” were the people in Mexico, Arizona and California who were protesting Arizona, who oppose SB 1070 and who cheered on what they, apparently, presumed today to be ‘victory’: no law enforcement, “nothing’s illegal”.

And, some of those helpful, enlightening comments from that thread on Hot Air — I learned considerably from patiently reading through the many comment pages.

…per this injunction, the state is prohibited from checking immigration status but is allowed to penalize employers who DON’T verify that status. It is logically impossible for a state to enforce a law that it cannot independently verify.

By: Fighton03 on July 28, 2010 at 3:57 PM

(Quoting: “…others are allowed to remain free, creating a “sense of impunity. As long as they keep their heads down, they’re in the clear. That’s no way of enforcing immigration law…” by drintn on July 28, 2010 at 4:12 PM):

Which is exactly how the Obama administration wants it. They will not commit political suicide by striking down immigration law….they will just make it impossible to enforce……

….pretty much like they did today……..

……..illegal immigrants around the country will be rejoicing while tax paying,law abiding citizens will be wondering where all that rhetoric about following the “rule of law” from “Mr. Hope and Change” went to.

These burgs pre-empted federal control by invalidating a part of the national immigration law that they disagree with.

If the Feds were really serious about “pre-emption” they would have acted against these self-declared, state-based scofflaws first.

This looks like selective prosecution.

Which invalidates the judge’s case, since she makes no mention of that pre-emption of the federal system by a non-federal actor.

By: profitsbeard on July 28, 2010 at 5:58 PM

Summary of Errors in Bolton’s Ruling

Major Error 1: Judge Bolton accepted hypothetical arguments from the government in a facial challenge to the law. I.e. Bolton said hypothetical danger to legal citizens outweighed actual threat posed by illegal aliens.

Major Error 2: Bolton said Arizona enforcement conflicted with federal policy of non-enforcement. This is absurd – not a real conflict. The feds have no policy, therefore there is no conflict.